Executives and employees of modern businesses communicate with one another, and with suppliers and customers, in a wide variety of ways. Especially with the current challenges of in-person meetings, electronic exchanges are now the norm for doing business. Emails, memoranda, voicemails, SMS/text messages, instant messages, hard copy notes and collaborative documents are all routinely created and circulated in the ordinary course.
It should come as no surprise, then, that each of these forms of communication (among others) are covered by the “all documents” specifications in our Second Requests, Civil Investigative Demands, and subpoenas for documents. This means that, absent modification of the scope of a request to which FTC staff have affirmatively agreed, recipients must preserve such documents and include them in their collection and production efforts in FTC investigations. As the forms of communication evolve, so too do the obligations of counsel to search for and produce communications in whatever form they take.
There is no provision in our Second Requests or in our compulsory process for recipients to unilaterally modify the scope of their obligations. If recipients believe—and can demonstrate—that a particular category of materials is unreasonably difficult or burdensome to obtain, or very unlikely to contain responsive information, they should contact staff to request a modification, and provide their basis for that request, including the efforts undertaken to assess the relevance of the materials and the burden of searching and producing them. Staff will approach such requests aware that relevant information takes many forms: instant messaging and text messaging, for example, are frequently a critical channel of communication among employees, who may generate responsive communications using any number of messaging applications (such as Slack, Teams, Hangouts, Jabber, iMessage, and WhatsApp). Likewise, edits and comments to collaborative documents are frequently a critical channel of communication among employees using any number of collaboration applications (such as Confluence and Quip).
Recipients should not unilaterally omit any category of documents and materials from their preservation, collection, and production of documents in response to FTC Second Requests or compulsory process. Doing so, other than by agreement with staff, may have unwelcome consequences. For instance, a Second Request recipient may be “bounced” and its certification of compliance rejected. This, in turn, will have consequences for the timing of staff’s investigation, and for parties’ ability to close their transaction.
Moreover, when making representations to staff about what responsive documents and materials do, do not, or may exist, counsel should be mindful of the importance of honesty and accuracy. Counsel should not represent that responsive materials of a particular kind do not exist without sufficient investigation. Representations of this kind implicate counsel’s duty of candor and professionalism when practicing before the Commission just as much as other representations, and the Bureau will take violations of that duty seriously. Counsel are encouraged to take affirmative steps to demonstrate compliance with their duties and facilitate cooperation with staff, including by sharing data maps that identify the categories and locations of responsive information.
In sum: to avoid unwelcome surprises, anyone who receives a Second Request or compulsory process demand from the FTC should be sure to preserve all responsive documents. Stay in close touch with FTC staff during efforts to collect, review, and produce documents, and don’t assume that any category of materials can be ignored. And finally, avoid making representations to staff about the existence and responsiveness of particular materials, or categories of materials, without sufficient basis.